many cases, it is difficult to perceive how such a corporation can successfully contest the validity of a special statute, which only sanctions a contract previously made by the *cor- [* 380] poration, and which, though at the time ultra vires, was nevertheless for a public and local object, and compels its performance through an exercise of the power of taxation.1 1 In Hasbrouck v. Milwaukee, 13 Wis. 37, it appeared that the city of Milwaukee had been authorized to contract for the construction of a harbor, at an expense not to exceed $100,000. A contract was entered into by the city providing for a larger expenditure; and a special legislative act was afterwards obtained to ratify it. The court held that the subsequent legislative ratification was not sufficient, proprio vigore, and without evidence that such ratification was procured with the assent of the city, or had been subsequently acted upon or confirmed by it, to make the contract obligatory upon the city. The court say, per Dixon, Ch. J.: "The question is, can the legislature, by recognizing the existence of a previously void contract, and authorizing its discharge by the city, or in any other way, coerce the city against its will into a performance of it, or does the law require the assent of the city, as well as of the legislature, in order to make the obligation binding and efficacious? I must say that, in my opinion, the latter act, as well as the former, is necessary for that purpose, and that without it the obligation cannot be enforced. A contract void for want of capacity in one or both of the contracting parties to enter into it is as no contract; it is as if no attempt at an agreement had ever been made. And to admit that the legislature, of its own choice, and against the wishes of either or both of the contracting parties, can give it life and vigor, is to admit that it is within the scope of legislative authority to devest settled rights of property, and to take the property of one individual or corporation and transfer it to another." This reasoning is of course to be understood in the light of the particular case before the court; that is to say, a case in which the contract was to do something not within the ordinary functions of local government. See the case explained and defended by the same eminent judge in Mills v. Charlton, 29 Wis. 413. Compare Fisk v. Kenosha, 26 Wis. 26, 33, Knapp v. Grant, 27 Wis. 147, and Single v. Supervisors of Marathon, 38 Wis. 363, in which the right to validate a contract which might originally have been authorized was fully affirmed. And see Marshall v. Silliman, 61 Ill. 218, 225, opinion by Chief Justice Lawrence, in which, after referring to Harward v. St. Clair, &c. Drainage Co., 51 Ill. 130, People v. Mayor of Chicago, 51 Ill. 30, Hessler v. Drainage Com'rs, 53 Ill. 105, and Loving. ston v. Wider, 53 Ill. 302, it is said, "These cases show it to be the settled doctrine of this court, that, under the constitution of 1848, the legislature could not compel a municipal corporation to incur a debt for merely local purposes, against its own wishes, and this doctrine, as already remarked, has received the sanction of express enactment in our existing constitution. That was the effect of the curative act under consideration, and it was therefore void." The cases of Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143, Brewster v. Syracuse, 19 N. Y. 116, and Thomas v. Leland, 24 Wend. 65, especially go much further than is necessary to sustain the text. See also [* 381] *Nor is it important in any of the cases to which we have referred, that the legislative act which cures the irregularity, defect, or want of original authority, was passed after suit brought, in which such irregularity or defect became matter of importance. The bringing of suit vests in a party no right to a particular decision; and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered. It has been held that a statute allowing Bartholomew v. Harwinton, 33 Conn. 408; People v. Mitchell, 35 N. Y. 551; Barbour v. Camden, 51 Me. 608; Weister v. Hade, 52 Penn. St. 474; State v. Sullivan, 43 Ill. 413; Johnson v. Campbell, 49 Ill. 316. In Brewster v. Syracuse, parties had constructed a sewer for the city at a stipulated price, which had been fully paid to them. The charter of the city forbade the payment of extra compensation to contractors in any case. The legislature afterwards passed an act empowering the Common Council of Syracuse to assess, collect, and pay over the further sum of $600 in addition to the contract price; and this act was held constitutional. In Thomas v. Leland, certain parties had given bond to the State, conditioned to pay into the treasury a certain sum of money as an inducement to the State to connect the Chenango Canal with the Erie at Utica, instead of at Whitestown as originally contemplated, the sum mentioned being the increased expense in consequence of the change. Afterwards the legislature, deeming the debt thus contracted by individuals unreasonably partial and onerous, passed an act, the object of which was to levy the amount on the owners of real estate in Utica. This act seemed to the court unobjectionable. "The general purpose of raising the money by tax was to construct a canal, a public highway, which the legislature believed would be a benefit to the city of Utica as such; and independently of the bond, the case is the ordinary one of local taxation to make or improve a highway. If such an act be otherwise constitutional, we do not see how the circumstance that a bond had before been given securing the same money can detract from its validity. Should an individual volunteer to secure a sum of money, in itself properly leviable by way of tax on a town or county, there would be nothing in the nature of such an arrangement which would preclude the legislature from resorting, by way of tax, to those who are primarily and more justly liable. Even should he pay the money, what is there in the constitution to preclude his being reimbursed by a tax." Here, it will be perceived, the corporation was compelled to assume an obligation which it had not even attempted to incur, but which private persons, for considerations which seemed to them sufficient, had taken upon their own shoulders. have expressed doubts of the correctness of this decision, ante, pp. *230*231, note, where a number of cases are cited, bearing upon the point. We 1. Bacon v. Callender, 6 Mass. 309; Butler v. Palmer, 1 Hill, 324; Cowgill v. Long, 15 Ill. 203; Miller v. Graham, 17 Ohio, N. s. 1; State v. Squires, 26 Iowa, 340; Patterson v. Philbrook, 9 Mass. 151. 2 Watson v. Mercer, 8 Pet. 88; Mather v. Chapman, 6 Conn. 54; Bristol v. Supervisors, &c., 20 Mich. 93: Satterlee v. Mathewson, 16 S. & R. 169, and 2 Pet. 380. amendments to indictments in criminal cases might constitutionally be applied to pending suits; and even in those States in which retrospective laws are forbidden, a cause must be tried under the rules of evidence existing at the time of the trial, though different from those in force when the suit was commenced.2 And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered.3 But the healing statute must in all cases be confined to validating acts which the legislature might previously have authorized. It cannot make good retrospectively acts or [* 382] contracts which it had and could have no power to per * mit or sanction in advance. There lies before us at this time a volume of statutes of one of the States, in which are contained acts declaring certain tax-rolls valid and effectual, notwithstanding the following irregularities and imperfections: a failure in the supervisor to carry out separately, opposite each parcel of land on the roll, the taxes charged upon such parcel, as required by law; State v. Manning, 11 Tex. 402. 2 Rich v. Flanders, 39 N. H. 304. 8 State v. Norwood, 12 Md. 195. In Eaton v. United States, 5 Cranch, 281, a vessel had been condemned in admiralty, and pending an appeal the act under which the condemnation was declared was repealed. The court held that the cause must be considered as if no sentence had been pronounced; and if no sentence had been pronounced, then, after the expiration or repeal of the law, no penalty could be enforced or punishment inflicted for a violation of the law committed while it was in force, unless some special provision of statute was made for that purpose. See also Schooner Rachel v. United States, 6 Cranch, 329; Commonwealth v. Duane, 1 Binney, 601; United States v. Passmore, 4 Dall. 372; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 100; Union Iron Co. v. Pierce, 4 Biss. 327; Norris v. Crocker, 13 How. 129; Insurance Co. v. Ritchie, 5 Wall. 541; Ex parte McCardle, 7 Wall. 506; United States v. Tyner, 11 Wall. 88; Engle v. Shurtz, 1 Mich. 150. In the McCardle case the appellate jurisdiction of the United States Supreme Court in certain cases was taken away while a case was pending. Per Chase, Ch. J.: Jurisdiction is power to declare the law; and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. This is not less clear upon authority than upon principle." But where a State has jurisdiction of a subject, e. g. pilotage, until Congress establishes regulations, and penalties are incurred under a State act, and afterwards Congress legislates on the subject, this does not repeal, but only suspends the State law; and a penalty previously incurred may still be collected. Sturgis v. Spofford, 45 N. Y. 446. 4 Kimball v. Rosenthal, (Sup. Ct. Wis.) 5 Cent. Law Journal, 372. a failure in the supervisor to sign the certificate attached to the roll; a failure in the voters of the township to designate, as required by law, in a certain vote by which they had assumed the payment of bounty moneys, whether they should be raised by tax or loan; corrections made in the roll by the supervisor after it had been delivered to the collector; the including by the supervisor of a sum to be raised for township purposes without the previous vote of the township, as required by law; adding to the roll a sum to be raised which could not lawfully be levied by taxation without legislative authority; the failure of the supervisor to make out the roll within the time required by law; and the accidental omission of a parcel of land which should have been embraced by the roll. In each of these cases, except the last, the act required by law, and which failed to be performed, might by previous legislation have been dispensed with; and perhaps in the last case there might be question whether the roll was rendered invalid by the omission referred to, and, if it was, whether the subsequent act could legalize it. But if township officers should assume to do acts under the power of taxation which could not lawfully be justified as an exercise of that power, no subsequent legislation could make them good. If, for instance, a part of the property in a taxing district should be assessed at one rate, and a part at another, for a burden resting equally upon all, there would be no such apportionment as is essential to taxation, and the roll would be beyond the reach of curative legislation.2 And 1 See Weeks v. Milwaukee, 10 Wis. 242; Dean v. Gleason, 16 Wis. 1; post, p. *515, note. 2 This is clearly shown by McKinstry, J., in People v. Lynch, 51 Cal. 15. And see Billings v. Detten, 15 Ill. 218, Conway v. Cable, 37 Ill. 82, and Thames Manufacturing Co. v. Lathrop, 7 Conn. 550, for cases where curative statutes were held not effectual to reach defects in tax proceedings. As to what defects may or may not be cured by subsequent legislation, see Allen v. Armstrong, 16 Iowa, 508, Smith v. Cleveland, 17 Wis. 556, and Abbott v. Lindenbower, 42 Mo. 162. In Tallman v. Janesville, 17 Wis. 71, the constitutional authority of the legislature to cause an irregular tax to be reassessed in a subsequent year, where the rights of bona fide purchasers had intervened, was disputed; but the court sustained the authority as "a salutary and highly beneficial feature of our systems of taxation," and "not to be abandoned because in some instances it produces individual hardships." Certainly bona fide purchasers, as between themselves and the State, must take their purchases subject to all public burdens justly resting upon them. The case of Conway v. Cable is instructive. It was there held among other things, and very justly as we think, — that the legislature could not make good a if persons or property should be assessed for taxation *in [* 383] a district which did not include them, not only would the assessment be invalid, but a healing statute would be ineffectual to charge them with the burden. In such a case there would be a fatal want of jurisdiction; and even in judicial proceedings, if there was originally a failure of jurisdiction, no subsequent law can confer it.2 Statutory Privileges and Exemptions. The citizen has no vested right in statutory privileges and exemptions. Among these may be mentioned, -exemptions from the performance of public duty upon juries, or in the militia, and the like; exemptions of property or person from assessment for the purposes of taxation; exemptions of property from being seized on attachment, or execution, or for the payment of taxes; exemption from highway labor, and the like. All these rest upon reasons of public policy, and the laws are changed as the varying circumstances seem to require. The State demands the performance of military duty by those persons only who are within certain specified ages; but if, in the opinion of the legislature, the public exigencies should demand military service from all other persons capable of bearing arms, the privilege of exemption might be recalled, without violation of any constitutional principle. The fact that a party had passed the legal age under an existing law, and performed the service demanded by it, could not protect him against further calls, when public policy or public necessity was tax sale effected by fraudulent combination between the officers and the purchasers. In Miller v. Graham, 17 Ohio, N. s. 1, a statute validating certain ditch assessments was sustained, notwithstanding the defects covered by it were not mere irregularities; but that statute gave the parties an opportunity to be heard as to these defects. 1 See Wells v. Weston, 22 Mo. 385; People v. Supervisors of Chenango, 11 N. Y. 563; Hughey's Lessee v. Howell, 2 Ohio, 231; Covington v. Southgate, 15 B. Monr. 491; Morford v. Unger, 8 Iowa, 82; post, pp. *499, *500. 2 So held in McDaniel v. Correll, 19 Ill. 228, where a statute came under consideration which assumed to make valid certain proceedings in court which were void for want of jurisdiction of the persons concerned. See also Denny v. Mattoon, 2 Allen, 361; Nelson v. Rountree, 23 Wis. 367; Griffin's Ex'r v. Cunningham, 20 Grat. 109, per Joynes, J.; Richards v. Rote, 68 Penn. St. 248; State v. Doherty, 60 Me. 504; Pryor v. Downey, 50 Cal. 388; s. c. 19 Am. Rep. 656. Walpole v. Elliott, 18 Ind. 259, is distinguishable from these cases. In that case there was not a failure of jurisdiction, but an irregular exercise of it. |
